Burge v. Hamilton

72 Ga. 568 | Ga. | 1884

Lead Opinion

Jackson, Chief Justice.

The propounders exhibited a paper which they alleged was. the last will of Alfred Shorter. The caveators, being the next of kin of the deceased, took issue, and alleged that it was not. The jury found on that issue with the propounders ; thereupon the caveators made a motion for a new trial, and upon the denial of that motion error is assigned here.

On a careful examination of the whole record—of all the grounds of the motion for a new trial, except on matters of practice-'—we think that they turn upon a single point) and that is, Avhether the testimony of Mr. Alexander, the scrivener of the codicil, and the confidential legal adviser of Mr. Shorter in regard to its execution and the sufficiency of the original will to which it Avas a codicil to stand the test of legal investigation, Avas legally admitted.

If that testimony was admissible, the evidence is sufficient to uphold the verdict of the jury, if they gave it credit; if it was not admissible, and could not be considered by the jury, then the opposite conclusion would probably be reached in respect to a part, if not the whole, of the AVill.

The original will is numbered from one to eleven, inclusive, on the last page of paper propounded as such. On that page the testator says: “ I nominate and appoint David B. Hamilton, Judge George Hillyer and Eben Hill-yer to be executors of this, my will, to carry the same into effect according to law, and Avhich avíII I have written on the above and foregoing pages, numbered from one to eleven inclusive, and identified by my name on the margin.” The last digit of the figure eleven, on a close inspection of it, with the aid of a glass, opens slightly, as if by the spreading of the pen, so as to leave a slight vacant spot in the middle, making quite an elongated cipher towards the lower part of the figure, not perceptible, however, to the naked eye of a man of my age at least, and is really, to all moral certainty, not a cipher but a digit, and the number is not the figure ten, but it is the figure eleven; and so I believe almost all, if not all, the witnesses on that point testify. The top of this page has the figure ten upon it, altered from eleven. On the margin of it, as on the margin of all the other pages of the document or paper, is the signature of Alfred Shorter plainly written. The preceding page has the figure nine plainly on its top, and altered from nothing else •, no other figure ever was there. This page nine contains the residuary clause of the will, by which Mrs. Hamilton is made the sole residuary legatee, and on its margin also is plainly written testator’s signature.

Page eight has been altered from some other figure, apparently from seven. It contains a forty thousand dollar legacy to the heirs of testator’s sister, Mrs. Beeland, two other minor bequests, and a loan to a friend, while running a furnace leased from the testator.

Page seven is quite plainly numbered on the top, and the number is not made over any other, or changed at all from any other. It is the bequest to Shorter Female College.

Page number six is apparently altered from five, which once was marked at the top. It disposes of previous devises to married women in case of their death, giving it to the children, and making husbands trustees without bond, subject, however, to any' will Mrs. Brooks may make or may have made ; and provides that if either owe him anything at his death, it is to be credited on the legacy, and if he builds on real estate given to any, the improvement is to be accounted for at the price he charges in the book where he keeps such accounts, and if he sell such property, the legacy is not to lapse, but the money value is to be paid as entered in the same book.

Page five is unaltered, and states settlements as executor and trustee or guardian with Georgia E. Hillyer, Ellen E. Hillyer, Milton A. Cooley, Alexander T. Harper, Elizabeth H. Wright, Charles M. Harper and Armstead R. Harper, deceased, and that he owes them nothing.

Page number four is clean and unaltered, and contains a bequest to Charles M. Harper of certain real estate, and to Milton A. Cooley of other real estate, with provisions as to their power to sell and encumber the same.

Page number three is also a clear figure, and on that page are bequests to certain ITamiltons and Harpers and Mrs. Wright, and to Alfred S. Hamilton his undivided half interest in a store.

Page number two is also clean, and gives Mary Rhodes a store and railroad stock and bonds.

Page number one is unaltered, too, and gives Martha H. Brooks a store house and lot, railroad stock and bonds and forty-two hundred dollars in money; also Georgia E. Hillyer railroad stock and bonds and ten thousand dollars, and also to Ellen E. Hillyer railroad stock and bonds and sixteen thousand dollars in money.

The codicil, executed twelve months after the will, in July of 1882, the will having been executed the same month in 1881, declares that, “ Being still of sound and disposing mind and memory, I, Alfred Shorter, do make the following codicil to the will made by myself on the 18th day of July, 1881, and attested by W. F. Ayer, J. C. McDonald and J. B. Hine. Said will is now ratified, approved and declared to be my last will in all respects, except in so far as the same is changed by this codicil.” The codicil is on three pages, numbered twelve, thirteen and fourteen, and recites that, ££ Milton A. Cooley having died since the execution of said will, I now annul the bequest made to him, and give Dr. Eben Hillyer, in trust for the widow and children of the said Milton A. Cooley, the store house and lot in the Coosa division of the city of Rome, occupied by Davis & Co., and known as the Crystal Palace, together with three thousand dollars of Rome water works bonds, and three hundred dollars of Rome city bonds, the latter known as twenty year bonds,—the income to be used for the benefit of the family, and the corpus to be divided equally between the widow and children, when the youngest of them becomes twenty-one years of age.” On the fourth page of the original paper propounded, he had given to Milton A. Cooley, “ the store house and lot on Broad street, Coosa division, city of Rome, known as the Crystal Palace, and now occupied by Davis & Co. as a dry goods store, without his having any power to sell, dispose of, etc., until his youngest child arrives at the age' of twenty-one years.” Sc that this codicil makes such reference to what he had given to Cooley as to show that when he executed the codicil he had in mind this clause of the will.

Next in the codicil, on the thirteenth page, he adds, “Being satisfied that the Shorter Female College is in present need of additional apparatus, furniture, instruments, etc., and the grounds about the college building need improvement, I give to the trustees of said college an additional five thousand dollars to be used under the direction,” etc., thus making reference to the seventh page of the will, wherein he gave the trustees of that college forty thousand dollars’ worth of bonds, with direction “ that the corpus of said property, as above mentioned, be regarded, as sacred, and forever set apart as a permanent endowment of the said Shorter Female College,” and the income to be used in employing teachers, reducing tuition, assisting poor worthy students, keeping the property in repair, or in such other way as the trustees thought best to the interest of the college and education.

On the same 13th page of the codicil, he adds, “ In addition to the specific legacies mentioned in iny said will, I now also give to Mrs. Sallie Ansley, living near Social Circle, and who is the daughter of my half sister, the sum of five thousand dollars to her own use, and also the additional one thousand dollars to be expended in the education of her daughter, Sallie,” etc., thus recognizing that he had made specific legacies in the will, and implying thereby a residuary legatee.

Then he adds, “I now repeat what has been stated in the body of my said will, that in all cases where legacies or bequests have been made, the same are to be charged with all sums of money or property which I may turn over to the beneficiaries respectively during my lifetime. The book referred to in my will, in which these various charges are made, will indicate the exact status of each when my will goes into effe'ct,” thus making reference to and identifying page 6, whereon this provision and allusion to the book of charges are seen in the will.

The original paper propounded as the will is holographic, written every line and word and figure by the testator, with every page identified by his signature on the margin, where figures on the tops of pages are altered, the alteration is plain, without any effort to hide what was done. The codicil is written by Mr. Alexander, and identified by the signature on the margin of each page ; but the pages run into each other in the codicil, a paragraph, or even a sentence, being partly on one and partly on another page, and not, in this respect, like the will, where all is concluded appropriate to a page on each page, and no broken paragraphs extend from one to the other page.

1, 2, 3, 4. I have been thus particular in reciting these facts to see whether these papers show such ambiguity as to let in parol evidence to explain it. It must be remarked that about the codicil there is no dispute. That those three pages were written at (he request of the testator, read over to him and approved by him, admits of no controversy. If deceased had mind enough to make a will, if not under undue influence, the codicil being executed in the presence of,three witnesses, is a testamentary paper executed by the testator. Now, that paper itself recognizes the will, in so far as it recognizes parts of it. It refers unmistakably to things in the will. It refers to the Cooley legacy; to his death after the execution of the will, and annuls the legacy to . him of a certain store-house, and gives that store-house to his brother-in-law in trust for the wife and children of deceased. It refers unmistakably to a general provision in regard to the credit of any advancements or buildings erected on property devised to be placed on the legacies or bequests given each legatee, and repeats what was said in regard to it in substance, and refers to the book as referred to in the will, where the charges of advancements, etc., would be found. It refers to the legacy to the Shorter College, in that it recognizes its immediate need of cash, and thus recognizes the provision in the will which tied up the corpus, and directed the expenditure of the income in other ways. It recognizes a residuary legatee, in that the codicil, “in addition to the specific legacies mentioned in his (my) said will,” gave another specific legacy of five thousand dollars, and one thousand dollars to another relative. It refers to the will by its precise date, and by the witnesses who attested it; and in all these ways it, the codicil, tends towards identifying the paper offered to be set up as the will to which this codicil was made. Moreover, it is attached to the paper on which the will is written with brackets, and in this condition it is found in the possession of the testator at his death. These facts, we repeat, tend with force to show that the paper thus referred to in the codicil, and fastened to it, is the paper to which the testator had reference, and which he ratified, approved and declared to be his last will, and is the paper which was propounded as-the will, and which the jury found to be his will-. But the words, “in all respects, except in so far as the same is changed by this codicil,” are relied upon to show that it is not the paper referred to in the codicil, because the codicil itself begins its paging with No. 12, thus recognizing that will as having eleven page's, and when the will is inspected on its face, the testator declares it does have eleven pages, and says that each page has his signature on its margin, while, in fact, there are only ten pages of that paper, and the last is changed from eleven to ten on the top-paging.'

The question thus arises, do not these two papers, thus propounded together, present on their faces great ambiguity? Construed together, do they not? Construing the will part, or rather, considerin g it by itself, is there not ambiguity, uncertainty, doubtfulness about it? The numbers of some pages untouched as originally written, of others evidently and plainly, not at all disguisedly, altered. The largest bequest being to itself on page No. 9, whose number was not touched, but stands precisely as testator put it there, and being the residuary clause, thus naturally coming before, immediately before, the executory clause, and being every word of it in testator’s handwriting, and having his own sign-manual on the margin, by itself, looks all right and genuine; and so do all the other important legacies. All appear clear and pure; and the apparent alteration of top page 11 to 10, and the statement of the executor’s clause, “I appoint . . . to be executors of this my will, . . . and which will I have written on the above and foregoing pages, numbered from 1 to 11 inclusive, and identified by my name on the margin,” alone throws the ambiguity, the doubt, the- uncertainty about either of the preceding legacies. Thus, on the face of this will appears this ambiguity; and thus, when the codicil ratifies and republishes it, referring to the date, the witnesses, several bequests and provisions in it, and identifies it to some extent as the will, yet it still leaves the question, is it t-he whole will, still uncertain and ambiguous. Parts of it might be set up and admitted to probate on the two papers alone; the clear proof of the codicil and all it contained, and the reference therein to the contents of the will, and the republication of it thereby, coupled with the very remote possibility that the missing page could have altered the validity and effect of parts of the original will, would admit to probate some, at least, of the bequests, but the ambiguity would remain to affect other parts of the will, and hence the question of the admissibility of the testimony of Mr. Alexander becomes important, if not vital,—if not to every part, yet to the will as a whole.

The will itself thus shows ambiguity, eleven being altered to ten on the last page, and the figures from one to eleven remaining unaltered in the body of the last page; but the codicil shows more clearly this ambiguity of the figures, in numbering its pages twelve, thirteen and fourteen. So that the face of the whole paper' propounded mak«s an ambiguity needing explanation.

If Alexander’s testimony be in and be credited, which is for the jury, then this trouble is explained, and no reasonable doubt can remain that the paper fastened to the csdicil, with its ten pages, is in its entirety the will and the whole will of Alfred Shorter.

Outside of our own Code, what is the law touching the admissibility of parol evidence in case of such ambiguity as, in our judgment, appears on the face of these papers?

In 1 Williams on Executors, 6 Am. Ed., top p. 388, bottosn p. 344, it is said: “ But it must not be supposed that, by the ecclesiastical law, two witnesses were required to each particular fact, nor to every part of a transaction; for it often happened that to the contents of a will or to instructions there was only one witness, the confidential solicitor or other drawer; but there were and must have been adminicular circumstances to the transaction, such as the expressed wishes of the testator to make his will, the sending for the drawer of it, his being left alone with the deceased for that known purpose, some previous declarations or subsequent recognitions,—some extrinsic circumstances, in short, showing that a testamentary act was in progress, and tending to corroborate the act itself.” Citing 4 Haggard, 314 ; 1 Roberts., 173 ; 3 Curt., 125 ; 4 Notes of Cases, 147 ; Dea. & Sw., 187 ; 52 N. Y., 517, in note Z. And in the next paragraph on the same, and the succeeding page, it is added: “ In Moore vs. Paine, the testatrix was entirely blind; there were three subscribing witnesses to the will, but only one of them (viz., the writer, who was of entire credit and wholly unconcerned as to the event of the suit) could account for the instructions, for the reading of the will to the testatrix and her approbation of it, and for the identity of the paper; the other two only deposing to the publication of it by her as her will, but they did not hear it read to her, nor did they know the contents of it. The capacity of the testatrix was fully proved, and that she had made a former will, which differed from this chiefly in the quantum of the legacies, which were smaller in that than in this. And Sir George Lee was, clearly of opinion that this will was sufficiently proved; and the learned judge observed that the proof of wills with us is by the jus gentium, and by that law one witnesses sufficient. There should be, indeed, some adminicular proof to corroborate the witness, which, in the present case, arose from the ■ conformity of the former to the present will, and from a declaration which it appeared in evidence the deceased had made, that she believed some of her relations did not approve of her will, which was some sort of recognition of this will. This cause was appealed to the delegates, where the sentence was confirmed.” 2 Cas. temp. Lee 595.

Do not the remarks of this learned commentator on the law in respect to the probate of wills, and to the effect that all the attesting witnesses necessary to the execution of the paper need not be called to each part of the transaction, to each particular fact therein, but that the confidential solicitor who draws the paper is sufficient to prove its contents, and to identify it as the thing which was made his will by the deceased, apply to the case here ? And does not the principle ruled in the case of Moore vs. Paine cover the point here ? There the testatrix was blind, yet her will was set up on the testimony of the writer, who alone identified it as having been known to her, Avith nothing to aid his evidence but the conformity of the will on probate to a former will in some respects, and her remark that her relations did not like her will, “ which was some sort of recognition of this will.”

In the case before us, Mr. Alexander, in like manner entitled to full credit, and Avholly disinterested, too, in the will, fully identifies it, just as it now stands, as the will to which testator referred in the codicil, and which he had entrusted to him to examine and see that it Avas all in conformity to law, at the same time that he gave him instructions to draAv the codicil, which he did draw, and as the very paper Avhich testator republished by the codicil as his Avill. He, Alexander, saw the mistake in paging, and mentioned it to deceased, who- observed simply that it -Avas a mistake; he read it to deceased by pages as it now stands, and it is the' paper, the Avhole paper, which Avas bracketed Avith the codicil as one Avill, and Avas found to be the Avill of Alfred Shorter by the jury. The adminicular proof of identity is stronger than in Moore vs. Paine. References are made to the will in the codicil which unmistakably point to parts of it, and, Avith the evidence of Mr. Alexander, make an irresistible lodgment in a fair mind, that these papers, thus tied together, and together constituting the disposition which propounders allege the deceased made of his property, do in truth together express the Avishes of deceased in respect to that property.

Suppose Alexander had been the scrivener Avho wrote the original will, and had attested it with two other witnesses, and had in like manner read it over to the deceased, and its identity had been questioned by reason of ambiguity on the face of the will, arising from the fact that the paging on the top of the pages did not correspond in number with the summary of them by the testator in the executory clause, can it be doubted that he could be called simply to examine the paper and explain such an ambiguity and to identify the paper, though wrongly paged and with three pages altered, as the very paper he drew for deceased, and that which he and the other two attested; and when the jury believed what he swore and found for the will, his testimony being supported by adminicular proof, would not the proof uphold that finding as legal and sustained by sufficient proof of identity to remove the ambiguity

Well, the actual case before us is one where the deceased himself wrote a paper as his will; he gave it to Mr. Alexander, as his lawyer and confidential adviser, to prepare a codicil to it, and to inspect it and see that the paper was all right in law; he took it, examined it, found it right except this ambiguity of figures, read it over with that paging, as it is, to the deceased, word for word, and called his attention to the paging. Why may he not in like manner explain it, when by the codicil this paper is sought to be proclaimed and ratified as a will, as well as he could have done it had he prepared and witnessed the original paper ? He was a witness to the republication of something by being a witness to the thing which republished that something. By witnessing the codicil which republished the will, he became a witness to that which proclaimed a certain paper to be the will. If he read over that paper to the testator, and knew its identity with the thing republished, why should he not identify it? Suppose that the spread of eleven into an elongated cipher thus, If), so as to make it read from one to ten, had been made by direction of deceased, and been altered .from eleven to ten by him, could he not have explained how that was done and why ? And so of the other altered numbers, could he not have told his client, the testator, that these alterations ought to be made, and make them by his direction, and thus explain the ambiguity and identify the will ? Assuredly. If so, why could he not make an explanation, less satisfactory perhaps,—its sufficiency to be-left to the jury on the trial of identity, and to the court in. reviewing the verdict, and that explanation to be weighed, with such adminicular proof as was produced on the one hand and the appearance of the paper on the other, and thus the scales to weigh them, the law, to be applied and the sufficiency of the proof to be determined? We are really troubled to see why he may not.

In addition to the references of the codicil to the will as assisting links m the chain of identification, it may be added that loose sheets of what were probably parts of former wills, one made in 1818, as the proof shows, and attested by those who witnessed the paper now offered for' probate in 1881, have bequests similar to those in this will, and marked cancelled; and it may be that the pages, with altered numbers, weré taken from the former will and placed in this at a different place, and thus requiring a-change of the figure. There are also circumstances, however slight, which strengthen the idea that the pages offered' for probate compose the will of deceased. Taking the explicit and emphatic statement of Mr. Alexander, that there-were but these same ten pages to the will which Mr. Shorter handed to him to examine, and adding to it the-fact (hat he read it over to him carefully, page by page, to-see what alterations Mr. Shorter wished made by the codicil,-and then took it home, at Shorter’s request, to see that it should be all right and the codicil should be prepared so as-to fit in with it; and adding again the references made in the ■ codicil to clauses of the will, which seem unmistakable,, and references to the date and witnesses thereof, and the-fact that it was then attached to the codicil and enclosed! in the envelope addressed to the ordinary, and the same-package was opened by Alexander and again identified as - being the identical thing he sealed up and so addressed to-the ordinary; and adding the fact that all the paper offered,, every page, is in the handwriting of the deceased, and one-bequest, which was changed from another figure to forty-thousand dollars, is also in his handwriting—it having been first carefully obliterated and then carefully re-written; and also the fact that loose sheets of what purported to be .a former will, also in his handwriting, tend to the same .point, in that they indicate, in the main, the same legatees ¡and legacies of the same approximate sums of money or .pieces of property, altered, as might be well supposed would be the case, when another will is made, as was the case ihere, and yet the female college which bore his name and which he controlled in life and loved till death, a favorite legatee all the time, in all loose sheets which are found in 'his handwriting, as in-the paper propounded and the codi,cil thereto, and everywhere second only in his liberality, ¡.as in his affection, to the infant niece and name-sake of his dead wife, whom they raised from that ’infancy to her marriage, in their home, and whom, with her children and husband, he recalled to that home, vacated by that wife forever, to supply as far as possible a place never again to 'be perfectly filled, and yet so far filled that hers was the hand that smoothed his last pillow, and hers the breast on which he breathed his last sigh,—add all these facts to that ’’dear testimony of this confidential legal adviser, and it •seems to us they make a strong case to solve the ambiguity caused by the difference of count in the top paging numbers and the summary in the body of the executory ■clause or page of the paper, all in figures and not written •full in letters, in favor of the fact being that the top numbers speak what truth demands, that eleven was changed ■to- ten to show that truth, and as the deceased said when ;he summed up and counted, he must have made a mistake, .and by inadvertence or the idea that it was a mere trifling mistake, he had neglected to correct it before, as he and Alexander, his counsel, both by their failure to correct it ¡afterwards, showed that it was regarded as a mere trifle, and they make a strong case also to convince the mind that the paper propounded is the will, the entire will, with the codicil, of Alfred Shorter. •

So the same learned commentator (Williams), on top page 404, bottom page 353 of the same volume says: “In a court of construction, when thefactum of the instrument has been previously established in the court of prebate, the inquiry is almost closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator. But in the court of probate the inquiry is not so limited, for there the intentions of the deceased, as to what shall operate as, and compose his will, are to be collected from all the circumstances of the case taken together.” And there, 2 Add., 243 ; 2 Phillim., 426 ; 3 Sw. & Tr., 586, and other cases in note h, are cited. It is added: “They must, however, be circumstances existing at the time the will is made,” citing 1 Robert, 661, 668 and 6 Notes of Cases, per Sir H. J. Fust in note i. We apprehend that the circumstances existing when the codicil is made, which republishes the will, come clearly within this limitation upon the rule here made, especially when the scrivener of the codicil is the lawyer and confidential adviser of the testator, and was employed by him to examine closely the will, and see that it complied with the law.

Also, in the same volume, the fact that the codicil and will are attached, it is said, is significant on the matter of republication of the latter by the former. On top pages 251-252, bottom pages 212-213, the author says: “A codicil will amount to a republication of the will to which it refers, whether the codicil be or be not annexed to the will, or be or be not expressly confirmatory of it. . . . But, although the effect of a codicil, as to republication, is by no means dependent on its being annexed to the will, yet if there are several wills of different dates, and there be a question to which of them the codicil is to be. taken as a codicil, the circumstance of annexation is most powerful to show that (it) was intended as a codicil to the will to which it is annexed, and to no other,” citing 1 Add., 41 ; 1 Vesey, Jr., 490.

It is true, that, in the case now before us, no other completed paper contests with that propounded the fact of being the entire will of the decedent; but the contest is that one page is missing from the paper propounded, and it takes that page to make this paper complete. Yet if the pages, as they now stand, numbered as they are, but ten pages as now offered for probate, be annexed to the codicil, is not that circumstance equally powerful' that the codicil was intended to be a codicil to those ten pages so annexed, as the complete will of Alfred Shorter ?

The learned commentator, moreover, goes further and adds: “A codicil referring inaccurately to a will may republish it.” And as authority for this dictum, he refers to the case of Janson vs. Janson, cited by Sir John Nicholl in Rogers vs. Pittis, 1 Add., 38, where the deceased had “executed two wills, the one dated the 21st of July, 1792, and the other dated the 18th July, 1796,” and “made a codicil in 1820, referring in terms to his will, not of the twenty-first, but of the first of July, 1792 ; and it was held that as the other circumstances of the case showed that the codicil referred to the will of 1792, and not to that of 1796, the inaccuracy was immaterial, and the will of 1792 was therefore republished.” The principle thus ruled is, that “other circumstances of the case”—that is, extrinsic circumstances, which must have been shown by parol evidence— would operate to annul the last will, made in 1798, and to set up in lieu of it one made in 1792, notwithstanding that the date of the latter, as referred to in the codicil, was erroneous. The question was one of identity of the will to which the codicil referred, • and these circumstances were admitted in evidence to show that identity, though the face of the codicil contradicted it. So here the question is the identity of these ten pages with that will to which this codicil refers, and all “the other circumstances of this case” may be let in to show the identity of the paper propounded with that referred to, and republished by this codicil, though it may contradict°one enumeration of paging in that paper. The only difference is, that in this case the inaccuracy is in the will, while in that cited by Sir John Nicholl it was in the codicil; but, inasmuch as both will and codicil were under consideration at the same time by the deceased and his confidential adviser, it is not easy to see a rational distinction between the two cases, so far as the admissibility of the circumstances of each case is concerned on the point of identifying the paper referred to in the codicil. Besides, this ambiguity of figuring is carried from the will into the codicil by the paging therein too, which paging is numbered 12, 13, 14, as if 11 were the number of pages in the will. So that here the inaccuracy is in the codicil too, as well as the will, thus making this case closer akin to that cited and approved by that eminent judge, and by this no less learned and eminent commentator, so recognized repeatedly by the entire English bench.

But, outside of these principles deduced b3^ Williams from the authorities examined and cited by him, the court of appeals in England, on questions of this sort, in the case of Sugden and others vs. Lord St. Leonards and others, in Vol. I., Probate Division of the Law Reports, p. 154, has adjudicated all these questions in respect to the admissibility and sufficiency of proof of contents, even of a lost will, by a single witness. The principles there ruled are, that “the contents of a lost will, like those of any other lost document, may be proved by secondary evidence ; that declarations, written or oral, made by a testator, both before and after the execution of his will, are, in the event of its loss, admissible as secondary evidence of its contents; that the contents of a lost will may be proved by the evidence of a single witness, though interested, whose veracity and competency are unimpeached; and that when the contents of a lost will are not completely proved, probate will be granted to the extent to which, they are proved.”

It is true, that probate was there asked of a lost will, and the contents were proved by this evidence as secondary, but, if to prove that the contents were known to the testator required three witnesses, though the will Avere in writing and not lost, be the law or rule of evidence, much more ought it to require three witnesses to prove those contents if the writing be lost. So we take it that this ruling .means that a single witness may show that the contents, and all the contents of any will, whether in existence or lost, were known to the testator, and that in a codicil he referred it and republished it. At all events, that any ambiguity or doubt about those contents arising on its face may be explained by the one witness, who was testator’s confidential adviser, so as to identify the will.

It will be observed that the ruling in this great case goes to the full extent not only of admitting all that transpires between the testator and his confidential adviser in the examination and execution of papers as his will or codicil, or both, at the time of execution, but of admitting the statements of testator both before and after their execution. Ohief Justice Cockburn in delivering the opinion of the court, says: “He must be taken to know the contents of the instrument he has executed. If he speaks of its provisions, he can have no motive for misrepresenting them, except in the rare instances in which a testator may have the intention of misleading by his statements respecting his will. Generally speaking, statements of this kind are honestly made,, and this class of evidence may be put on the same footing with the declarations of members of a family in matters of pedigree, evidence not always to be relied upon, yet sufficiently so to make it worth admitting, leaving its effect to be judged of by those who have to decide the case. It is upon this principle, I presume, that the declarations of a deceased testator have, in more instances than one, been admitted as evidence. Thus, they have been admitted, as in Doe vs. Palmer, 16 Q. B., 747, to negative the presumption arising from interlineations appearing on the face of a will, that such interlineations have been made subsequently to the execution of the will,” etc.

And then the Chief Justice adds, in the same case and immediately thereafter: “The question before us is, whether the statements made by a testator as to the provisions of his will can be received as evidence of the contents of a will known to have existed, but at his death is no longer forthcoming. That morally such statements and declaration are entitled, where no doubt exists of their sincerity, to the greatest weight, cannot be denied ; and I am at a loss to see why, when such evidence is held to be admissible for the two purposes just referred to, it should not be equally receivable as proving the contents of the will.” The other purpose, besides the explanation of interlineations referred to by the Chief Justice, for which the statements had been held admissible, is such as “when I am dead you will find my will in such a place,” or, “l have left my estate of Blackacre to my son John ;” or, “I have left 5,000£ to my daughter Mary;” and the conclusion which the high appellate court in England on matters of probate reached is, that the whole contents of a lost will might be proved in the same way by similar statements, on the question of'its factum and the identity of its contents when made.

In Doe vs. Palmer, referred to in that opinion, the admissibility of such evidence was confined to declarations made before the execution of the will, but the rule was extended in the case of Lord St. Leonards’ will to statements after its execution. It is to be noticed, too, that the will in that case—Doe vs. Palmer—was not lost; but the question was upon interlineations and erasures in the written will produced. Were these alterations made before the will was executed, was the question; and the court, allowing that the presumption is that they were made afterwards, admitted the statements of the testator to rebut that presumption. So in the case now before us the question is, was the alteration of the figures 11 to 10 made before or after the execution of the will, or of the codicil which.republished the will, and was the alteration in the top numbers of other pages so made, and was thus the true number of pages ten, or was it eleven, at the time this codicil was executed, notwithstanding the figure 11. remained unaltered in the body of the page ; and was the statement of the testator to Mr. Alexander at the very time the codicil was read to him, to the effect that he must have made a mistake in that enumeration, and ten was the true enumeration, and the fact that he, Alexander, the Saturday before, read, the ten pages, every word of them, and’ them only, to testator, was this evidence also admissible to show the identity of these ten pages with the whole will testator had executed the year before, and which he republished when he executed the codicil? If interlineations and erasures, going to prove material bequests in a will may be thus explained, why not an ambiguity or doubt touching the identity of the paper as the whole will, arising not out of ambiguous words or sentences, or other material writing, but the number of pages in figures summed up, ten altered from eleven in one place, and an unaltered eleven in another, be likewise so explained ? The human mind is ingenious to find out many inventions, but it is not easy for a plain, open, fair mind, seeking truth, to reject the statements in the one case and admit them in the other.

The case of Sugden vs. Lord St. Leonards was decided by the entire bench, composed of the Lord Chancellor, Lord Chief Justice, Master of the Rolls, and six other judges, making the court of appeal in probate cases in England in the year 1876 ; and in 1880, it was followed by the case of Gould vs. Lakes, 6 Vol. Probate Division, p. 1. Where it was ruled that, “Statements of a testatrix, whether made before or after the execution of the will, are admissible to show what papers constitute the will.” Anri this is not the case of a lost will, but of whether a certain sheet was part óf a will, very similar to the case at bar. In Gould vs. Lakes, a sheet was alleged as not being part of the will; in this case at bar, a page is alleged to be missing. In that case, on the death of deceased, her will was found in her writing desk in an envelope, which had been apparently thrice opened and resealed. With the exception of the attestation clause, it was all in her own handwriting, and contained in two sheets of old fashioned note paper, one within the other, and stitched together bookwise. Upon the first page of the outer sheet were the words:

“I appoint my two nephews, Robert John Gould and Robert Gould Lakes, to be my joint executors to carry my will into effect. I appoint my nephew, Robert John Gould, to be my executor and sole residuary legatee, Martha Rashleigh, and placed with my will the 1st day of August, 1872. Stanley Lodge, Exmouth.”

The second side was blank, and the next four pages after the blank page, viz.,’ the whole of the inner sheets were paged 1, 2, 3, 4. On 1, 2 and 3 were legacies-Page 4 was as follows :

“I bequeath to my step-son, Sir Colman Rashleigh, Baronet of Prideaux, Luxulian, Cornwall, the sum of 5000£. I declare this to be my last will and testament, and in witness hereof, I hereunto set my hand and seal this 1st day of August in the year of our Lord, 1872.

(Signed) Martha Rashleigh.

Signed, sealed and declared to be her last will and testament by the said Martha Rashleigh, the testatrix, in our presence, who, in her presence, and in the presence of each other at the same time, subscribe our names as witnesses.”

And then signed by the witnesses! “ The next page of the document, i. e., the inner side of the outer sheet, was a blank, and the outer side of all contained the endorse-' ment: ‘ The will of Martha Rashleigh, August 1st, 1872.’ Neither of the attesting witnesses were able to say whether the will was contained in one' or two sheets of paper, or to recollect anything, except that it was duly executed in their presence. Mr. Tremayne (one of the witnesses), who had read the will before its execution, and who had filled up the attestation clause at the request of the testatrix, had no recollection whatever of its contents. It appeared, however, that before the execution of the will, the testatrix repeatedly expressed orally and in letters her intention of making her nephew, Robert John Gould, her executor and residuary legatee, and it further appeared from declarations of the testatrix, contained in letters written after the execution of the will, and in declarations repeated by her shortly before her death, that she believed she had given effect to this intention in her will.”

So that the point was clearly made whether statements of the testatrix, both before and after' the execution of a will, were admissible to show what papers constituted the will which was executed and published by the testatrix ; and it was held by Sir James Hannen, the president of the court, that the case of Sugden vs. Lord St. Leonards covered and controlled the point. He says : “ But I am also of opinion that statements made by a testator after the making of the will, not merely with reference to the contents of the lost instrument, but with reference to the constituent parts of it are admissible. That has been decided by the court of appeal in Sugden vs. St. Leonards, and there is no distinction between this case, where the question is what formed part of the will, and the case where the whole will is lost. . . . The present question is, whether these two papers were joined together, or were before the testatrix at the time she signed. But the questions of law would not be different if the suggestions were that the first sheet was a forgery or an interpolation by somebody after the event. In such a case, could it be said that in order to establish that this sheet was a genuine part of the will, evidence could not be given of a statement of the testatrix before she made the will, that she was going to dispose of her property in the manner in which it appears to be left in the paper alleged to have been interpolated. And, in my opinion, it is also the law that statements to the same effect subsequent to the making of the will would also be admissible to show what was the state of the testatrix’s mind and intentions, just as it would be an ingredient in the consideration whether or no a supposed interpolated sheet were a part of the will at the time of its execution.

“I think that the case is governed by the decision of the court of appeal in Sugden vs. St. Leonards, and that any statements of the testatrix, whether made before or aftei the execution of the will—fori see no distinction between' them—are admissible in evidence, with a view of showing what were the constituent parts of the will.”

When it is borne in mind that the author of this opinion is the author of that appealed from in Sugden vs. St. Leonards, and that the opinion there was affirmed with high encomiums upon the learning and ability of Sir James Hannen by that appellate court, it would seem to us that the construction he put on the former case must be correct beyond all cavil and dispute. And what is that decision, as applied to the case of Gould vs. Lakes ? It is that parol evidence is admissible to show what papers—what sheets and pages of a paper knit together—constitute a will executed in the presence of witnesses who could not swear to the identity of the papers at all; that statements of the testator, both before and after the execution of the will, both written and oral, are admissible to establish the constituent parts of the will, and identify certain papers as the will, when none of the witnesses to it could identify those parts to be part of the will.

In the case before us, the point for the propounders is much stronger. It is whether the statement made by the testator to the scrivener of a codicil to the will, who was also instructed to examine the legality of the will itself, is admissible to show that ten pages fastened together are the will, and the whole will of the testator, there being some confusion about it on account of the number of pages stated to be in it, and the attention of testator having been called by the scrivener and confidential adviser to that confusion of numbering the pages ?

In Gould vs. Lakes the question was, did the outside sheet make part of a will it enclosed, whose pages were numbered 1, 2, 3, 4, thus not counting that outside sheet at all; and testimony, not of Tremayne, who was the witness and officer who wrote the attestation clause of the will, but of anybody who heard testatrix express herself touching the contents of that outside sheet as part of the will, was admitted to show that it was part of the will. In this case, the question is, did another page, marked 10, constitute part of this will when executed, or when executed, was it just as it is now ? And the testimony of Alexander, the scrivener and confidential adviser of testator, was admitted to show that no other number 10 was in tes tator’s will when executed, but the whole will, just as it now stands, is the only will executed and republished by the explicit statement of testator to him, when each page was read over to testator, and scanned by Alexander to. see what changes he wished made, and was recognized by him as his full and complete will, and that, too, when the confusion about a possible missing page was made known to the testator by the witness.

It is inconceivable, if such testimony be admissible at all, that a stronger case for its admissibility and sufficiency to identify the constituent parts of a will, by the recognition of each and all the parts by the testator, can be made by any set of facts.

So' in the case of the Goods of Braddock, 1 Probate Div., L. R., p. 433, it was held that a codicil was entitled to probate, where the witnesses to its execution signed their names on the back of a will to which the codicil was attached with a pin, upon evidence aliunde that the papers were attached with the pin when the codicil was executed, and that the intention of the witnesses, by their subscription on the back of the will, was to attest the signature of testatrix at the foot of the codicil.

See also Dickinson vs. Stidolph, 2d C. B. R., New Series, p. 339, which is to the effect that whei’e two memoranda are referred to and only one found, that found will be given effect, the contents of that lost being uncertain; “for (say the court) either the ordinary presumption will be applied, that the missing paper was destroyed animo revocando or the principle must be applied, that the apparent testamentary intentions of a testator are not to be disappointed merely because she made other dispositions of her property, which are unknown, by reason of the testamentary paper which contained them not being forthcoming. It is on this principle that a subsequent will is no revocation of a former one, if the contents of the subsequent will are unknown. And the law is the same, even if the later will be expressly found to be different from the former? provided it be unknown in what the difference consists.”

See again notes to 3 Phill., 434 (444-445, top pp.) ; Blackwood vs. Damer and Lord St. Helens vs. the Marchioness of Exeter ; Fawcett vs. Jones, Ib., top p., 455, et seq.; Bayldon vs. Bayldon, 3 Addams, 509 ; and Travers & Edgill vs. Miller, Ib., 506 ; Greenough vs. Martin, 2 Addams, 239, top p. 286. In the last named case, it is expressly ruled by Sir John Nicholl that “in a court of probate, what instruments the testator meant to operate as and compose his will, is to be collected from all the circumstances of the case.” In Draper vs. Hitch and others, 1 Haggard, 674, top p. 289, the same principle is ruled by the same judge, that parol evidence is admissible in,a court of probate to explain an ambiguity on the face of the will, but the facts proved must completely remove the ambiguity.

So in Methuen vs. Methuen, 2 Phillim., 416, top p. 290, •the same judge ruled that “the same rules do not apply •in a case relating to the factum of a will which would apply if the inquiry were concerning the construction of it. In the court of probate, the whole question is one of intention; the animus testandi and the animus revooandi are completely open to investigation in this court. Suppose that in a case of fraud, or in a case of error, the residuary clause is omitted, it may be inserted by the court. It is admitted, that if there is doubt on the face of the papers, the court may admit parol«evidence.” So in Rees vs. Rees & Rees, 6 Moak’s Notes, 365, 3 Prob., and Div., 84, it was held by Sir J. Hannen that where “the will of deceased had been engrossed by a law stationer on fifteen brief sheets of paper consecutively numbered ; on the sixteenth sheet the testator had written a codicil, and on the eighteenth and last a schedule of property referred to in the will; on the death of testator, it was found that the original fourth sheet had been removed and placed loose in his desk, and that the original seventeenth sheet had been used in substitution of the. fourth by the testator, and the several sheets were tied together with tape ; the legal presumption that papers bound together, and constituting the will as found at testator’s death, was not rebutted by the circumstances of the case.”

But it would seem to be useless to follow the adjudications further' on the subject of thé admission of parol evidence to explain ambiguities, outside of this state. The question also arises whether, though the will, as executed in July, 1881, may have been altered by the testator after -that execution, yet if republished by the codicil by being referred to therein and annexed thereto, it is not made valid thereby. Such is the law conceded by the caveators, it is believed; but whether so conceded or not, such is the law. See 1 Jarman on Wills, bottom page, 114 et seq., top p. 260 et seq.; 1 Williams on Ext’rs, bottom page 212, top p. 251 ; 1 Redfield, 368 (3), (4), 371 (6); 2 Notes of Gases, 406 ; 4 Ib., 79. It is true that “an unexecuted alteration in a will is not rendered valid by a codicil ratifying and confirming the will, unless it be proved affirmatively by extrinsic evidence that the alterations were made before the codicil,” which shows that the proof may be made by extrinsic evidence, and if so made the ■ alteration will be made valid. 1 Jarman, bottom p., 121, and cases cited. See also the Goods of Sykes, 3 Prob., and Div., 26 , 5 Moak’s Eng. R., 521 ; 3 B. Monroe (Ky.), 390, and cases there cited; 1 Burrow’s R. 1549, Carlton, ex dem. Griffin, vs. Griffin ; 16 Vesey, Jr., 167 ; 1 C. & M., 42 ; 1 Ves. & B., 445.

These references to able text-books and cases decided show that by the English law parol evidence is admissible, first, to explain certain ambiguities, for the most part latent; secondly, to show what papers constitute a will offered for probate, with the attesting clause and witnesses signing according to law ; thirdly, that this parol evidence may show the identity of the will with the paper propounded, by statements of the testator at the time of the execution, before the execution and after the execution; fourthly, that greater latitude is given to the admission of parol evidence on issues of probate than of construction of the will after probate ; fifthly, that a codicil, expressly affirming a will which could not convey realty, or was illegally executed, if that codicil be legally executed, made the will valid, especially if annexed to the will; and sixthly, that a will identified, in part, will not be refused probate as to that part, because of the uncertainty of other probable parts, the contents of which lost or missing parts are unknown! And these adjudications are not affected by or based upon any statute of Victoria or other modern law, but are constructions of the old law.

How do the Georgia statutes and adjudications of this court affect this law ? So far from detracting from its force, we think that the laws of this state not only affirm it, but enlarge its scope in many respects.

On the question of the admissibility of extrinsic and parol evidence, the Code of this state greatly enlarges it to explain ambiguities. Section 2457 provides that “when called upon to construe a will, the court may hear parol evidence of the circumstances surrounding the testator at the time of its execution, so the court may hear parol evidence to explain all ambiguities, both latent and patent.”

So section 2472 declares that “the destruction of a will, expressly revoking all former wills, does not revive a former will, unless subsequently republished. In such cases the republication may be proved by parol;” that is, a dead will may be brought to life by parol. So in section 2431 it is declared that, “if a will be lost or destroyed subsequent to the death, or without the consent, of the testator, a copy of the same, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate and record in lieu of the original; but in every such case the presumption is of revocation by the testator, and that presumption must be rebutted by proof.” What sort of proof? In Kitchens vs. Kitchens, 39 Ga., 168, this court construed the last cited section, and held that the presumption could be rebutted by any such proof as clearly satisfies the conscience of the jury, either by the subscribing witnesses, or any other competent testimony, and in case of conflict, the jury must decide, and that where there is evidence to sustain the verdict in such a case, a new trial should not be granted. Chief Justice Brown, in delivering the opinion, says that “the facts may be proved by such other evidence as satisfies the conscience of the jury” that the presumption is rebutted; and adds: “Indeed, it very rarely happens that the three subscribing witnesses hear the will read, or know anything of its contents. And, on the other hand, it frequently happens that some friend of the testator does know the contents of the will, who is not a subscribing witness, while others may know what disposition has been made of the will since the testator’s death.”

Thus the court there opened the whole question of de~ visavit vel non, coming virtual^ before it on the immediate issue of revocavit vel non, to the introdution of aliunde and parol testimony. And in Cobb vs. Jones, 34 Ga., 458, the declarations of the testator, both before and after the execution of tbe will, were let in to show intention to defeat the statute against the manumission of slaves.

So in Patterson vs. Hickey, 32 Ga., 156, five years before Cobb vs. Jones, this court held that “ where the question is revoeavit vel non, parol evidence as to the acts and declarations of the testator is admissible, although made-at any time between the making the will and the death of the testator.” Chief Justice Lumpkin, delivering the-opinion, says: “ Revoeavit vel non is similar to the question of devisavit vel non, and is a question of fact for the consideration of the jury,” citing Powell on Devises, 6, 34,. and 3 Wilson, 508. He adds that, “ all the courts agree-that declarations made prior to, or at the time of the execution of the will, or ils revocation, are admissible. The-judicial mind, both in England and in this country, is-divided as to whether it should not be so restricted. In. some of the earlier English cases, as in Nelson vs. Oldfield, 2 Vernon, 76, this kind of evidence was admitted without question.” And he also cites Lord Mansfield and Buller, J., in Brady vs. Cubitt, Douglas R. 49, to the effect that parol and every kind of evidence is admissible on such, issue of fact. And after reviewing other English and. many American decisions of eminent judges in this country,, our own first Chief Justice thus announces the conclusions-of his own mind: “ Having thus, as briefly as I could, adverted to the conflicting decisions uponihis vexed question,. James Kent and J oseph Story, men unsurpassed for legal learning, being arrayed against Ambrose Spencer and! Thomas Ruifin, to say nothing of Spencer Roane, than, whom abler common law judges never presided in the-courts of this country, and differing as I do from a worthy brother and associate, for whom and for whose opinions L have the highest respect, I must say that I have not a-., scintilla of doubt resting in my mind, that the testimony-excluded should have been received by the circuit court.”’

So that it appears from this case of Patterson vs. Hickey,. decided in 1861, that this court unanimously reached the conclusion arrived at in 1876, by the highest appellate court in cases of probate in England in Sugden vs. St. Leonards ; and thus it is seen that the two first principles deduced from the English authorities are sustained and enlarged by our own statutes and our court in construing our statutes and those English cases.

Equally clear is the Georgia statute on the subject of the effect of the execution of a codicil on a will to which :itis annexed. Section 2478 of the Code declares: “A •codicil, properly executed and annexed to a revoked will, ¡shall amount to a republication of the same. Any writing executed with all the formalities required for a will may operate as a republicatioii. A republication of the same paper in the presence of three witnesses, who shall subscribe as additional attesting witnesses, shall be good. A parol republication in the presence of the original witnesses to the will shall be good.”

Does'not the spirit of this statute give the English adjudication on the same subject full force? Does it not enlarge the scope of that adjudication ? It strikes us that it does. A codicil properly executed, if annexed without more, republishes that will. What will ? Why, the thing ¡annexed. Any writing properly executed may so operate .as to republish. A republication of the same paper in the presence of any three witnesses who attest it additionally, will do, and a parol republication in the presence ■of the original witnesses will do.

In Jones vs. Shewmake, 35 Ga., 151, where the question was, whether lands acquired after the will but ibefore the codicil passed by the will, this court held, -Judge Lumpkin again delivering the opinion, that “prima facie, the execution of a codicil to a will of lands, so •executed itself as to be capable of passing lands, is a Tepublication of the original will, and the effect of such ¡republication is to make the will operate in the same manner as if executed at the time of such republication, unless a special intent is manifested in the codicil to restrain such operation and give it a less extensive effect. In other words, it brings down the will to the date of the codicil, making the will speak as if of that date. That is, both will and codicil should be taken as one entire instrument.” As the law of Georgia then stood, after acquired lands did not pass by a will—since altered by our Code— so that the effect of that decision is that, by virtue of the execution of the codicil in the presence of three witnesses at that time and to that instrument, the will operated to take hold of and convey property which before it could not touch and did not convey, and that the execution of the codicil moulded itself into the will, making the twain one flesh, and thus vitalized what was dead when the will stood alone. If one palsied limb of the will wore thus restored, why not another, two limbs, the whole body of it ? So that the question here is still nothing but one of identity. If the paper given by the testator to Alexander, as a will previously executed, for his examination and the addition of a codicil to it, be the paper propounded here now, even if altered since its original execution, it became one instrument with the codicil, was vitalized by it so as to bequeath and devise Shorter’s property, and was republished and made valid just as effectually as if it had been then re-executed itself. If a will, the whole of which had been killed dead, to use Judge Stephens’s language in Lively vs. Harwell, 29 Ga., 515, by revocation, cancelling, obliteration, may be revived, why may not a cancelling or obliteration or destruction of part of it—a sheet or page—be healed by the same means? If the republication of it, as first executed and all.annulled, by a codicil attached, and expressly ratifying and affirming it can revivify all, why may not the same mode of republication by codicil revivify just as many pages of it as the testator then wished to make with his codicil as one complete will ? So this decision covers the rule in England.

So that the question comes to this,'the same point: Conceding that after the execution of the will, it was altered, was it competent to show by Alexander that the identical paper offered for probate was read by him to Shorter, recognized by him as his will, referred to by his direction in the codicil and ratified and republished therein ? And in the other view of it, the question is the same: Was it competent to show by Alexander that, notwithstanding the confusion in the numbers, the testator recognized this identical paper as the will which he had executed on the date and in presence of the witnesses named therein and referred to both as to date and witnesses in the codicil ? And when the proof Avas admitted, is it sufficient, with the adminicular proofs, to set up the will under the law ?

The cases cited from the English courts would set it up.How is it with the Georgia Code and decisions thereon"? The Code, section 2457, supra, declares: “ When called upon to construe a will, the court may hear parol evidence of the circumstances surrounding the testator at the time of its execution; so the court may hear parol evidence to explain all ambiguities, both latent and patent.” The law is that on the issue of deuisavit v&l non, wider latitude is allowed in letting in parol testimony than in the construction of clauses of the will which convey items of property. So that if the surrounding circumstances be admitted to construe the terms of the will, a fortiori will they be admitted on the issue of the fdatum of the will. Indeed, they are always so admitted. What transpires between the scrivener and the testator is that circumstance surrounding the testator more important than all others. What transpired therefore between Alexander and Shorter touching the codicil must go in as specified in the statute and over and over decided by all the courts; for the effect of the language of Judge Lumpkin, supra, is that all admit that the- statements made then and before that date are admissible on this issue of ivill or no will. But the codicil refers to, and is annexed to, the other paper, and republishes something, identifying this paper in many references to its bequests as that something. Shall the witness be cut off from telling what the testator said to him about that annexed paper, on which the codicil was framed, and without which the codicil cannot be executed ? It would be very strange if such were the law. It would be as unreasonable -as singular, especially as that paper, as well as the codicil, was submitted to his care as the confidential lawyer to put his mind upon and act in reference to both, and make both legal. If Alexander had written that other paper, as he did write the codicil, could he not identify what he wrote himself? If so, why can he himself not identify this paper, though in the handwriting of the testator, if he read it in the presence of the testator, examined it closely to make a codicil to its provisions, and therefore of his own knowledge is sure that it is the veritable paper he fastened to the codicil, and sealed them up together, and directed them to the ordinary in the presence and by direction of the testator? and why need it be identified by the other witnesses to the codicil or the will further than by their signatures thereto ?

But in order to make assurance doubly sure, our statute goes further and admits parol evidence to explain all ambiguities, latent or patent.

Is there no ambiguity on the face of the will itself as to the number of pages ? Most clearly there is. On the top numbering it is ten; in the body of the last page it is said the will is from one to eleven inclusive. So that there is ambiguity there. And taking the two papers as one instrument, there is still ambiguity, for the codicil continues to number from eleven as the last page of the will. Bearing in mind the rule that there is more strictness in confining parol testimony in construction of wills than on their probate, cannot this ambiguity be explained, and the identity of this paper as the will of July, 1881, be shown by Alexander ?

It seems quite clear to us, after a careful consideration of the whole case, that it can be done. The truth is, the doors of justice open, wider day by day to the admission of testimony, and this parol evidence to explain all ambiguities in instruments of all sorts is made legal by our statute law. Code, §2757. The testimony, by our own law, is therefore made admissible, and if admitted and believed, there is no room for doubt about the tru Ji of the case. Ought it to be believed ? IT is character is unimpeachable. He takes nothing under the will. He is wholly disinterested. He is corroborated by the reference made in the codicil unmistakably to items of the will; by the fact that the residuary clause numbered nine, with no alteration in that number, and in the handwriting of, and marginally signed by, the testator, is' exactly where it ought to be, that is, immediately preceding the page which appoints the executors and attests the will; and thus the probability is very strong, almost conclusive, that there was no need of another page between nine and ten, and that, when the will was executed, no such page was there, though in the original draft there were probably eleven, but before executing the will the testator had reduced the number to ten; by the fact that there had been a former will, and loose sheets in the handwriting of testator were found, so that it is extremely probable that he used the pages whose numbers were altered from former drafts, and rewrote the residuary clause to Mrs. Hamilton, and put it, rewritten, exactly where it belonged, before the clause of attestation which was used by him as written and numbered before in the body of the page, but altered on top, as were other numbers on the top of other pages; by the fact that Mrs. Hamilton had been, to all intents and purposes, his adopted daughter, and nearer and dearer to him than any being- his wife left behind her; by the fact that the college was also dear to him and was provided for by him next to her whom he had raised from infancy ; by the fact that he had been thrown into close relationship with the kindred of his wife and dissociated from his own, so that naturally his heart-strings twined more closely around them, and his affections for them from childhood were nurtured by their environment, and grew with their growth, and blossomed and ripened into this will and the large bequests it made to them; by the fact that this paper of ten pages is attached to the codicil, which itself, if other wills competing with this and completed were offered against it, would be conclusive, but as it stands is a powerful circumstance to show that the ten pages so fastened is the original will executed the 18th of July, 1881, just as it was then attested, and by the fact that the will in its essential features accords with the intentions of the testator in respect to the disposition, he designed to make of his property as expressed to others than Mr. Alexander, and that each page of it is all his own handwriting and is signed by him on the margin of each, and thus is each separate page his will indubitably as to what is written thereon, and under the authorities cited, and our own adjudications could be set up, if part could not be. See Morris and Wife vs. Stokes, 21 Ga., 552.

Against the testimony of this disinterested and perfectly credible witness, thus corroborated, what do the caveators urge ? Nothing, except that the testator republishes, by the codicil, “the will made by myself on the 18th day of July, 1881, and attested by W. F. Ayer, J. C. McDonald and J. B. Hiñe; said will is now ratified, approved and declared to be my last will in all respects, except in so far as the same is. changed by this codiciland in that will on the last and attestation page are these words: “I nominate and appoint David B. Hamilton, Judge George Hillyer and Eben Hillyer to be executors of this my will, to carry the same into effect according to law, and which will I have written on the above and foregoing pages numbered from 1 to 11 inclusive, and identified by my name on the margin, and hereunto subscribed my hand and affixed my seal for its due execution, this the 18th day of July, 1881.,” and they insist that the will “.so ratified, approved and declared to be his (my) last will,” is not the paper offered, because the 10th page is missing, and the codicil uses the language that it is so ratified, approved and declared his will “in all respects, except in so far as the same is changed by this codicil.” They insist that a particular will is referred to in the codicil, and not this one set up by the jury, because the codicil does not alter, but rather affirms it in respect to the numbering, by itself continuing to number 12,1,3 and 11 on the top of its own pages, and that the law is, in such acase, that if that particular will be notproduced, nothing is republished by the codicil, and that there is no legal proof that the missing page was out when the originál will was executed. The point is not destitute of acumen, nor devoid of force ; but if well taken, what part of this will would it pierce to death ? What was on that missing page, if there when this will was executed ? No human being knows. Therefore, the principle that the parts of the will identified would not fail of probate on account of a missing part, whose contents were unknown, would save much, if not all, of this will. Every special legacy, and all are special but one, is identified by the handwriting of the testator by his signature on the margin, and by numbers, most of them, all except two, unaltered, and within the numbers one and eleven.

Will a court conjecture that this absent page affected them ? How could it ? The testator made a codicil conceded to be all right, and that did not affect or alter either specific legacy, except as named co add to the college endowment, and to change the legacy to Milton A. Cooley in consequence of his death. Will a court seeking truth-presume that others were altered by a missing page on the original will ? We cannot think so for a moment. So that nothing is left for it to operate upon except the residuary clause and the legatee under it. Was there in it any provision that lessened that? It is unreasonable to think so. That residuary clause is numbered 9. It precedes the last page—the attesting page, originally 11, now changed to 10, and there is no alteration of a figure or letter on that residuary-legacy page, but the next page is altered from 11' to 10. To a fair mind it would seem infinitely more probable that there was no suca missing page when the will was executed, but that testator used the attesting page of a former will, or draft of a will, which was originally numbered 11, and when he re-wrote the residuary clause on page 9, and put it in the will he intended to execute on the 18th of July, 1881, he altered 11 on the top of the old page to 10, and put that in after the clear page making his residuary bequest, and neglected at the same time to alter the summary from 1 to 11 in the body of this old page so used; it is much more reasonable, I repeat, so to conclude, than that he put in his will after the residuary clause or page, and between it and the attesting page, something which cut down the residuum.

It is more reasonable to think so, because the residuary legatee was the apple of his eye, the little one whom he had raised, the womanly and loving nurse, who let him down as gently as loving arms could into his grave.

But, if cut down, how much must it be topped? Nobody can answer. To whom must that which she loses be paid? Nobody can tell. She is certainly his residuary legatee, nobody can doubt that. The clause that makes her so is in his handwriting; his name is on its margin ; he numbered it on top 9 ; that number is within 1 and 11, and there is no sort of suspicion about letter or figure on that page. If a court of justice should construe her to have nothing, it would be to dethrone itself, and seat in-j ustice in its stead. If asked to take from it something and give it to somebody, surely the court may inquire how much, and to whom ? The only answer echo makes -is, “How much and to whom ?”

But the codicil refers to the will, and identifies what it is otherwise than by the words “in all respects,” etc. It makes allusion to sundry specific legacies in the will unmistakably, by implication strongly to a residuary legacy, and to a book in which certain accounts are kept. So that the words “in all respects” become themselves ambiguous as to what they allude to. • The language is “in all respects, except in so far as the same is changed by this codicil.” The codicil changes it only as regards legacies, bequests, not as to figures. Figures, in all probability ? were not in the mind of testator or scrivener. Were they or were they not, is ambiguous at least, and under the Georgia statute may be explained, whether latent or patent. And so may the figures, the paging, the position of the residuary clause, of the attesting clause, the alteration of some paging, none in others, the change of one page on top to 10 from 11, and 11 unaltered in the body of the same page, all make ambiguities patent on the face of the will, and in the references of the codicil thereto, and thus , all are open to explanation 'by parol evidence, both of what tho witness himself did and knows of his own knowledge, as of what the testator said to him at the very time ‘ he was instructing him what changes he wished made in the will which he wished him in the codicil to republish. And when that testimony is in, all doubts vanish, as with the aid of the face of the papers themselves, the improbability of tampering with a will and not altering the body paged figure 11 as well as the top paged figure 11 (fraud puts out its tracks better than that), the cancelled loose sheets, and others found, and the accordance of the will with the avowed purpose of the testator long entertained,— all the evidence shines upon the case, the clouds disappear and the light is let in, so that the truth beams clearly on the inquiring mind.

After a most careful study of the case and the law applicable thereto, my mind settles in the conviction that nothing outside of my personal knowledge, and dependent upon human testimony, is more morally certain to me, than that this codicil, with the ten pages of what purports to be a will attached toil., is the disposition, and the whole disposition, which Alfred Shorter desired to make, and according to aw did make of his property at his .death. See further, 21 Ga., 552 ; 7 Ib., 438 ; 28 Ib., 382, 104-5-6 ; 32 Ib., 325, 156 ; 14 Ib., 596, 375-6 ; Williams on Ext’rs, bottom p. 353, et seq.

5. There was no error in striking the jury from the grand jury list. Acts of 1869, p. 141, Code, §§3925, 3926. The judge has the discretion • to do so in trying issues in civil cases. This is an issue in a civil case. The .fact is that, as by the constitution they are composed of the most intelligent men, the discretion is wisely exercised.

6. There was no error in the charge and refusals to charge on the subject of the will being unnatural. By the law of God, man and wife are one, and her kindred are his. The same rule- is applied by human law in selecting jurors and in respect to the credibility of witnesses, to the wife’s kindred equally with the husband’s, where the issue is the husband’s impartiality or credit. It was more natural, really, in the case at bar, that the testator should have given his property to his wife’s kindred, who grew up around him, and associated with him, especially to those whom he raised from infancy, than to his own, whom he rarely saw and scarcely knew.

7. There is not enough evidence on the issue of undue influence to raise a question about its exercise by anybody over such a man as Shorter was, in the legal sense of undue influence, and therefore there was no error that hurt in the refusal to charge as requested thereon.

8. 9. In ruling and charging to the effect that parol evidence could not change, add to or contradict the writing, but where there were ambiguities they could be explained by it, whether latent or patent, and in refusing requests which militated against this view of the case, there was no error. In our judgment, there were ambiguities needing explanation, as heretofore considered, and therefore the court should not have charged on the theory that there were none.

So in respect to the admission and effect of parol evidence to identify the paper propounded as the will of the decedent, under the views already submitted, there was no error , and in comparing the requests to charge refused, given or modified with the charge .tself, we see no material error which, in view of all the facts before the jury, satisfies u& that the ends of justice demand a new trial. On the contrary, the general tone of the charge is fair, the issues are fully and fairly submitted and commented upon with entire impartiality, and a different result could not have been reached, in view of all the facts and the law applicable thereto.

10. We hesitated much on the denial of the continuance, in view of the fact that some heirs at law had but recently been made parties, and one witness on the question of undue influence had not been examined by interrogatories and .was under promise to be present, and her presence was very desirable, as stated by counsel. But in the light of the rule that motions to continue are much within the discretion of the presiding judge, and unless that discretion has been abused and the ends of j ustice demand it, the rule is inflexible that this court will not interfere, and having carefully examined the evidence which counsel hoped to procure, and failing to see a probability of a change of the verdict on undue influence, or that there ought to be a change of it on that evidence, we do not see how, without departing from a long current of authority from first Kelly down, we can control the discretion of the presiding judge. Nor do we see that the other point is stronger, to-wit, (hat certain clients had just been made parties. They lived in other states; they could not have been of much use on the issue of undue influence; most, if not all, were infants; the great issue in the case was upon legal .questions on the admissibility of the testimony of Mr. Alexander, on the admissibility of testator’s statements, on the words and figures of the will and codicil, whether plain or ambiguous, upon which questions it is quite difficult to see how strangers and infants could throw much light and contribute much strength to so able an array of conncil as represented the caveators, especially as it is not hinted that either absent client was a lawyer.

Besides, we feel satisfied with the verdict. It is right on the law and facts. It is indeed a verdict. The truth is said by this jury; and no technical objection to rulings on evidence, or to charges not affecting the merits, or difference of opinion between members of this court and the presiding judge below on the point whether we, if on the nisiprius bench, would have exercised the discretion then lodged in us differently from his exercise of it, would, in such a case as the review of the law and facts of this make it, justify us in awarding a new trial over the head of the circuit j udge.

Judgment affirmed.

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Concurrence Opinion

Hall, Justice,

concurred, ■ but furnished no written opinion. He stated, on the subject of the continuance, in addition to what Chief Justice Jackson had said, that persons could not enter a litigation and be made parties for their own benefit, and then claim a delay merely because they had been so made.

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Dissenting Opinion

Blandford, Justice,

dissented, but furnished no written opinion. He was of opinion that a continuance should have been granted.

Case Details

Case Name: Burge v. Hamilton

Court Name: Supreme Court of Georgia

Date Published: Jun 10, 1884

Citation: 72 Ga. 568

Court Abbreviation: Ga.